Our Outside Counsel column in today’s NYLJ is on "The Defense of Collectibility in Legal Malpractice"

Here is a portion.  For the entire article, see today’s NYLJ:

The Defense of ‘Collectibility’ in Legal Malpractice

By Andrew Lavoott Bluestone
New York Law Journal
April 20, 2007

One of the many wrinkles in legal malpractice, which in some ways is a body of law unto itself, is the defense of collectibilty.

Simply put, it is the defense that even if successful, plaintiff might not have been able to collect a hypothetical judgment from the defendant. In no other field of law is plaintiff required to prove that collection can be had at the end of litigation. Pyrrhic victories are elsewhere permitted, and plaintiffs often face uncertainty of reward in other fields of law.

There is a split between departments in New York over who bears the burden of proving collectibilty or noncollectibilty. This article will describe the issue and the split.

In order to establish a prima facie case of legal malpractice, it must be shown that the defendant attorney deviated from good and accepted practice ["failed to exercise the degree of skill commonly exercised by an ordinary member of the legal community"] and that plaintiff-client sustained actual, real, measurable damages as a proximate result of the deviations by the defendant attorney.

Hinshaw writes today about a federal worker’s compensation attorney fee issue which applies to all attorney fee disputes:  block billing and 1/4 hour minimum billing, both of which led to a reduction by the court:

"Brief Summary
The Ninth Circuit reviewed the guidelines applicable to court-awarded attorney fees in ERISA litigation. Among other things, the court upheld a 20 percent reduction based on the attorney’s block billing and a 20 percent reduction based on the attorney’s use of quarter-hour minimum billing segments. On the other hand, the court held that it is appropriate for a fee award to include consideration of the attorney’s delay in receipt of fees. More generally, the court held that the appropriate hourly rate must be one that is charged, on an hourly basis, by equivalently skilled practitioners and that the time spent on various litigation-related activities must not be excessive. "

Not legal malpractice, but about legal fees.

Associate intercepts calls, moves clients around, takes away business, indicted, convicted, jailed.

Now, the litigation is about lost clients.  Here is the Appellate Decision.

the NYLJ today reports:

"The New York State Commission on Judicial Conduct voted Tuesday to curb the responsibilities of its chairman, celebrity divorce lawyer Raoul Felder.

The vote came in the wake of Friday’s "no confidence" vote in Felder because of what the commission described as the "racial, ethnic and religious invective" in "Schmucks!" a book he co-wrote with comic Jackie Mason.

Felder did not attend the meeting. The resolution, which was adopted without dissent, withdrew from Felder the authority to serve as the body’s spokesman.

In another move aimed at Felder, the commission said it is changing its prior practice of allowing any of its 11 members to sign non-public letters of caution issued to judges.

"Until further notice," the resolution states, all of the commissioners, "other than the chair," shall have the authority to sign the letters.

In an interview Wednesday, Felder disputed the commission’s factual premise, saying the past practice had been for only the commissioner to sign the letters. The body was acting, he said, out of a "hysterical" concern that he would refuse to sign the letters.

Felder agreed that the commission’s administrator, Robert Tembeckjian, should alone handle dealings with the media, and noted that he had deferred to Tembeckjian since becoming chairman last June.

Tembeckjian said Wednesday that the commission continues to examine whether it has the authority to remove Felder as chairman.

Cassandra Crottyreports in the Illinois Legal Malpractice Blog that:

"Insurer Able To Proceed With Legal Malpratice Lawsuit
An Illinois appellate court recently reversed a circuit court entry of summary judgment in favor of a lawyer and his Park Ridge law firm, holding that an insurance company can proceed with its legal malpractice lawsuit against the law firm that represented the insurer in connection with a coverage dispute. The appellate court found that the "defendants failed to meet their burden of production on their motion for summary judgment because they did not present evidence that, left unrebutted, would entitle them to judgment as a matter of law or demonstrate that the [insurer] would be unable to prove any element of its cause of action."

The case-within-a case stemmed from a car accident that occurred in 1991. The insurer, Universal Underwriters Insurance Co., had issued an insurance policy to Carriage Chevrolet Inc., a car dealership in St. Louis. Michele Heflin, a Carriage Chevrolet salesperson, was driving a car owned by the dealership when she pulled over to help a driver with a disabled vehicle on the side of the road. While Heflin was rendering assistance, another car struck and injured her. Heflin filed suit against the driver and received $25,000 – the limit of the driver’s policy. Heflin then turned to the Universal umbrella policy issued to her employer, Carriage Chevrolet, arguing that it provided under-insured motorist coverage. When Universal denied her claim, Heflin then filed a declaratory judgment suit asking the court to determine and adjudicate the rights and liabilities of the parties with respect to the umbrella policy. Universal then hired the defendants in this action, Jay Judge and his law firm, Judge & James, to defend it in the dec action. 1n 2001, after litigating the action (in court and in arbitration), the trial court entered an order requiring Universal to pay $2,975,000 plus interest, and two weeks later, Universal, through new counsel, settled Heflin’s claim for $3 million.

Universal then filed this legal malpractice suit against it’s former lawyers. In its amended complaint, Universal contended that the lawyers owed it a duty of care, which included the obligation to take timely appeals and to timely seek other remedies in the event of adverse and erroneous judgments. Additionally, Universal contended that the lawyers breached their duties by failing to raise the $1 million umbrella policy limit as a defense or limitation on damages in the arbitration proceeding"

Here is a newspaper article recounting the story of a rape-security trial at which the attorney failed to show.  Legal malpracitce and a roller coaster of dismissal, reversal, affirmance followed.

"The state Supreme Court declined Wednesday to hear a case in which a state appeals court ruled an Escondido rape victim can sue two civil attorneys for alleged legal malpractice.

The court’s decision leaves in place the January appeals court ruling that said the lawsuit against the attorneys, Mark Kelegian and Thomas Morgan, can proceed.

The attorneys represented the woman when she sued the landlord of the apartment complex where she was raped for allegedly failing to provide sufficient security at the property. Kelegian did not show up for the trial of that lawsuit, and the woman learned the case already had been dismissed, the appeals court ruling stated."

Plaintiff loses on appeal in this legal malpractice case.  Injured in a casino after slipping and falling in vomit, the attorney sent a claim letter but  did nothing further, the statute of limitations then running out.  AD:  no proof of notice to the casino, and legal malpractice case must be dismissed.

"The issue in this legal malpractice action is whether plaintiff established that "but for" the negligence of defendants in failing to timely commence a personal injury action on her behalf, she would have prevailed in that litigation. On July 4, 2002, plaintiff was walking through the lobby of the Trump Taj Mahal Casino Resort in Atlantic City when she slipped on a substance she identified as vomit. Plaintiff did not see any substance on the floor prior to her fall. She alleges that after she fell, a woman dressed in a blazer and holding a walkie-talkie, whom she believed to be a security guard, came over and told her to get up. When she tried to get up unassisted, she allegedly fell again in the vomit

"After depositions, defendants filed a "renewed" motion for summary judgment, this time relying on plaintiff’s deposition testimony, where she again admitted that she had no information regarding how long the dangerous condition existed. Defendant Kuczinski also noted that during each of his discussions with plaintiff about the case, she never mentioned any "second" fall. Plaintiff responded that she should not be penalized for her inability to prove notice in the underlying action, since that inability was solely the product of defendants’ negligence in failing to investigate the case and timely commence an action. According to plaintiff, had a formal action been timely commenced, she would have obtained the names of crucial witnesses, such as the security guard, as well as any surveillance videotapes kept by the casino, in routine pre-trial discovery proceedings. In addition, plaintiff argued that actual or constructive notice could be inferred in the underlying action, given the vomit’s proximity to the lobby desk and bell boy station.

On appeal this legal malpractice arising from a medical malpractice case reated a partial reversal after suffering dismissal in Supreme Court.  The attorney who was defended by Kaufman Borgeest Ryan attorney Michael Furman won his appeal.  Attorney Mondora, representing himself, lost, and had his dismissal reversed.  A pyrrhic victory against a pro-se uninsured attorney??